This article on, ‘Section 9 Family Court Act: A Need for Amendment‘; is written by Parvraj Patni. He is a 1st Year Student in LL.B. (Hons.) from Jindal Global Law School.
Table of Contents
The origin of Hindu marriage in Vedic culture can be traced back to century 1500 BCE to century 500 BCE; whereby the ‘Dharam shastras’ defined what a marriage is, how the samskara of marriage is a lifelong union of a man and a woman. It also defined the core principles for a ‘Happy Marriage’. Some of those principles are that if one is married under Hindu tradition then they are supposed to be together for the lifetime and for the next seven births; another one is that a woman is a holy entity whose role is to take care of the husband, his parents and handle the household chores. [see here]
Section 9 of the Family Court Act says that, “The family court has to aim for settlements in disputable marriages.:-
- In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit ; or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
- If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties; the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
- The power conferred by sub-section (2) shall be in addition to, and not in derogation of; any other power of the Family Court to adjourn the proceedings.”
This should be done with the aim of protecting the institution of marriage. These courts have been given the power to counsel the couple and solve their problems to protect the marriage.
Family Court & It’s Hardships
A Toxic Marriage Better Fails
In an article by Srimati Basu, she gives a first-hand analysis of a family court in Kolkata; where she talks about the functioning of these courts and how they solve the disputes between aggrieved couples. She gives instances in which she emphasises the point that the toxic attachment of these courts for preserving the marriage turns out to be suffering for a woman.
The reasoning that these courts give for the conciliation of the marriage were primarily based on imposing gender stereotypes usually on a woman. Some of this included telling a woman to adjust with abusive parents in law because her husband was a good person (because he didn’t smoke or drink); counselling a husband to ‘allow’ his wife to go to work and many others. The judges of these courts don’t even hold back from calling themselves family members and elder sister of the aggrieved people [see here].
Flavia Agnes also writes about these family courts in which she covers a broader ambit of these courts. In that article, she gives several cases where women facing physical and mental abuse are told to adjust with her husband for economic reasons. Some cases show women facing years of struggle in property disputes because family courts refuse to take cases that don’t concern marriage.
Need for Mediation in a More Healthier Way
These instances and analysis shows how these family courts are adamant in saving the marriage by sending women into more agony and suffering. They boast about the number of marriages they saved but in reality; they are boasting about how many women and men they have sent in more suffering.
There is a difference of thousands of years between the writing of Dharmashastras and the family court act; but why do they still follow similar reasoning? Why is there so much emphasis on preserving the institution of marriage where it is clearly evident that one of the partners or both the partners are suffering every day?
During the Vedic period, the role of women was restricted to the boundaries of home and their ‘duties’ were definite. Also, at that time there wasn’t much emphasis on the mental or the physical health of a woman; because no matter what she is facing she can’t go against the word of shastras.
Apex Court Views
Most of the divorce petitions that come to courts for divorce are based on cruelty. Justice Chandrachud said, “cruelty can be both mental and physical; it just needs to be of the apprehension that makes it impossible for the person to live with another”. [see here] This broad ambit of cruelty should be taken into account while resolving family disputes rather than just somehow saving the marriage, though the case in which he said this is one of the most criticised judgements (that is talked about in the latter part of the paper). The courts need to understand that what is cruelty for one may not be cruelty for another [see here].
The said proposal is the need of the hour and not just in the form of written amendment but this needs to be understood by the judges as well. We may think that the upper-level courts are more understanding regarding the aspects of cruelty; breakdown of marriage and will lean less towards saving the institution of marriage but that is not the case. The upper-level courts still give judgments that are regressive and leads to more agony for the aggrieved party.
In the Dastane case, the court concluded that the couple won’t be granted a divorce because, during the times of agony and cruelty towards each other, the couple engaged in sexual activities (though they were not talking to each other) and this ‘implicates’ that they were condoning the marriage.
Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002
In another case of Savitri Pandey, the court held that the sanctity of marriage can’t be left at the whims of one of the annoying partners. Court did not differentiate between the cruel habits and annoying habits of the partner; and concluded that marriage can’t be dissolved. Court also said cruelty can’t be based on the sensitivity of one of the partners and the cruel acts should be cruel in general. [see here]
Laws must always evolve with the times if society is to progress. The laws and regulations that we have presently have too much attachment to our older patriarchal society. These laws don’t adhere to the needs of the present society. This overarching attachment to protecting the institution of marriage is not suitable in the modern era. What needs more change is the perception of marriage by the judiciary. They should not be this attached to protecting the institution of the marriage that they forget all the other considerations.
The issue we face presently in cases of divorces is that the judges still perceive marriage on the line of Dharam shastras whereas the times have changed. Now the roles of genders are different; the working of all people has completely changed and it isn’t same as perceived by the authors of those shastras.
Need to Change the Opinion towards Men
Women are now in every field of society and in every role that is on the land. They are not just restricted to the confinements of home. Men are also the bread makers as well as the breadwinners in society.
These exuberant times call for a better perception of marriage; and a much better perception regarding divorce where it won’t attach any stigma to it. The proposed amendment will help in the evolution of the judiciary. This will lead to easier divorces and help the agonised parties to end their suffering. The courts will have a legal duty to look into every consideration that concerns the divorce; thus this will help in a clear cut balance of scales. This will help to reduce the discrepancies that courts impose while deciding the decree of divorce.
The said amendment will bring in changes to the existing anarchical law that still imposes stereotypes. This amendment will also help hundreds of people who suffer every day. Why not work in direction of betterment of divorce laws; when we are already progressing in issues of live-in relationships; court recognising various mental issues and other things.
Apart from societal benefits, this amendment will also help to break down the mental blockage; that the judiciary has regarding divorce which will help in the faster dissolving of the divorce cases. As Nick Robinson’s says, this will also help to reduce the burden of the already swamped courts [see here].
1- Flavia Agnes, Family law: Family laws and constitutional claims, (Oxf. Univ. Press 2011).
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